§ 841(b)(1)(C) Enhancement Requires Proof that Drug Was But-For Cause of Death or Injury

Under 21 U.S.C. § 841(b)(1)(C), a defendant who unlawfully
distributes a Schedule I or II drug has a 20-year mandatory minimum sentence if
“death or serious bodily injury results from the use of such substance.”The death/injury “results from” enhancement
is an element that must be submitted to the jury and found beyond a reasonable
doubt since it increases the minimum and maximum sentences.In Burrage’s case, the victim had multiple
drugs were present in his system, and no expert was prepared to testify that
the heroin Burrage sold was the sole factor for the victim’s death or that the victim
would have lived if he had not taken the heroin.Nevertheless, Burrage was convicted under the
enhancement because the jury was instructed that the Government must prove that
the heroin Burrage distributed “was a contributing
cause” of the victim’s death.The Eighth
Circuit affirmed the conviction.

The Supreme Court agreed with Burrage that the statute as
written requires but-for causation, as
a matter of common sense and given the rule of lenity.The Court reversed Burrage’s conviction on
that count and remanded for further proceedings:

We hold that, at least where use of the
drug distributed by the defendant is not an independently sufficient cause of
the victim’s death or serious bodily injury, a defendant cannot be liable under
the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use
is a but-for cause of the death or injury.

Justices Ginsburg and Sotomayor concurred in the judgment
but wrote separately to clarify that they “do not read ‘because of’ in the
context of antidiscrimination laws to mean ‘solely because of.’”

ABA Article on Chief Judge Stewart

Take a closer look at Chief Judge Stewart in this ABA Journal article by Mark Curriden. Describing the Fifth Circuit as "the most divisive, controversial and conservative appeals court," the article provides insight into Chief Judge Stewart's inspiring background and even temperament and into some of the challenges he will face during his years of leadership.

Tuesday, January 28, 2014

“Vulnerable Victim” Enhancement Not Barred by “Victim Under 12” Enhancement

Jenkins appealed his conviction and sentence for
various offenses concerning child pornography. He argued that the district
court erred in applying a two-level sentence enhancement pursuant to U.S.S.G. §
3A1.1(b)(1), the vulnerable victim enhancement, and that his sentence of
twenty-years imprisonment is substantively unreasonable. The panel affirmed the
judgment of the district court.

The vulnerable victim enhancement applies if the
defendant knew or should have known that a victim of the offense was a vulnerable
victim. Jenkins argued that the very nature of child pornography involves those
who may be considered “vulnerable victims” due to age and that the
vulnerability of the victims was already accounted for by the “prepubescent
minor” and “depictions of violence” enhancements. The panel concluded that
there was no logical reason why a “victim under the age of twelve” enhancement
should bar application of the “vulnerable victim” enhancement when the victim
is especially vulnerable, considering the fact that children under twelve years
of age are vulnerable for various reasons other than age.

Jenkins also contended that his twenty-year sentence
was substantively unreasonable. Jenkins claimed that the child pornography
guideline, § 2G2.2, lacks an empirical basis. The panel found that Jenkins’
argument was foreclosed by UnitedStates v. Miller, 665 F.3d 114, 121 (5th
Cir. 2011), and that he failed to show in any way that his sentence was
substantively unreasonable.

Friday, January 24, 2014

The panel vacates Guzman’s conviction and remands since “the
district court expressly declined to make factual findings that may have had a
determinative impact on the outcome of the suppression hearing.”What factual findings did the court refuse to
make? Whether Guzman consented, whether
the officer misrepresented his authority to search Guzman’s car, and whether
the officer’s misrepresentation rendered Guzman’s statements inadmissible and
consent involuntary.Instead, the court
decided that even if the officer tricked Guzman into making an admission, such
trickery did not taint the search.

Here’s what happened: Officers arrive at a house based on a
tip that meth is being sold there.Guzman was sitting in a car in the driveway, and he exited the car when
the officers approached.An officer “struck
up a conversation” with Guzman, during which Guzman mentioned that he was just
released from prison.In the officer’s
version of what happened next, he asked Guzman if he could search his car for
drugs; Guzman consented, saying there were no drugs but there was a
handgun.In Guzman’s version (corroborated
by the audio recording of his later interrogation), the officer said he was
going to search the car, and Guzman responded that there were no drugs but there
was a handgun.The officers found the
handgun but no drugs.Of course, the
officers also discovered that Guzman was a convicted felon, and he was then
charged with being a felon in possession.

In response to Guzman’s suppression motion, the Government
argued that Guzman gave verbal consent or, alternatively, that the search was
permissible under the automobile exception since Guzman said he was released
from prison and there was a gun in the car.During closing, the district court asked whether an officer could trick
a defendant into making a guilty admission by saying, “I’m going to search your
car whether you like it or not.When I
do, am I going to find any contraband?,” and whether a guilty admission would
justify probable cause to search the car.The court decided an officer could do such a thing, which would justify
probable cause for the automobile exception to the warrant requirement, and
denied the motion to suppress without deciding whether or not Guzman
voluntarily consented to the search or whether or not the officer asked for
consent or said he was going to search the car.

The panel points out that a false claim of lawful authority
could affect the validity of Guzman’s consent and the admissibility of his
subsequent statements.“An inadmissible
statement cannot constitute probable cause to support an otherwise illegal
search.”Further, “‘any
misrepresentation by the Government is a factor to be considered in evaluating’
whether the defendant’s consent was voluntary.”The panel clarified that United
States v. Andrews, 746 F.2d 247 (5th Cir. 1984), “did not establish a
general rule that officers can use trickery to obtain consent” but was a “narrow”
decision holding that the Government carried its burden in that case to show
that Andrew’s consent was voluntary.

Since the district court did not ask the right legal
questions in making its ruling and declined to make the factual findings
necessary to resolve the issue, the panel remands to the district court to
obtain additional findings.

Note: As an alternative, Guzman argues for the first time on
appeal that the automobile exception could not apply to this case because his
car was parked in a private driveway.Even though the panel finds Guzman waived this argument by not raising
it at the suppression hearing, the panel notes that this argument does not have
clear support in Fifth Circuit precedent when officers believe the home in
question was being used for illegal activity.

Perez, charged with
possession with intent to distribute fifty grams or more methamphetamine and conspiracy to do the same, appealed his
conviction. He challenged the sufficiency of the evidence supporting his
conviction, disputed the evidentiary rulings surrounding the prosecution’s
cross-examination of Perez, claimed that the prosecutor committed misconduct
during closing argument, and contested the district court’s application of the
Sentencing Guidelines. The panel affirmed the judgment of sentence and
conviction.

The defense got off to a turbulent start when Perez
failed to renew his motion for a judgment of acquittal regarding his
sufficiency of evidence argument, thus forfeiting his first challenge. The
evidence in question was still reviewed, however, and found to be quite
sufficient. Perez’s other arguments were also reviewed and subsequently
dismissed. A significant obstacle to Perez’s claims was his nonchalant reaction
to the narcotics present at the intended drug deal. The panel suggests that the
evidence was more than enough to convince a reasonable jury that Perez’s
alleged ignorance was feigned.

The panel held that the government permissibly used
financial documents to undermine Perez’s alibi during cross examination, and
that the prosecutor’s references during closing arguments to the financial
documents that arguably impeached Perez was not misconduct. Furthermore, the district
court properly applied the obstruction of justice enhancement since the court
pointed to specific statements in Perez’s testimony that it found to be false
and willfully made. The panel also affirmed the district court’s finding that
Perez was not a minor participant because he transported the meth concealed in
a cooler and helped the undercover dismantle the cooler.

Friday, January 17, 2014

In keeping with the theme from 2013 that the mandatory
minimum sentences impose harsher penalties than necessary to serve the purposes
of sentencing, the U.S. Sentencing Commission voted to seek comment on a
proposed amendment to lower the base offense levels in the Drug Quantity Table
by two levels across the board.In its news
release, Judge Patti B. Saris, Chair of the Commission, stated that the
proposal reflects the Commission’s “priority of reducing costs of incarceration
and overcapacity of prisons, without endangering public safety.”Judge Saris described the proposed approach
as “modest” and stated that “[t]he real solution rests with Congress.”The Commission continues to “support efforts
there to reduce mandatory minimum penalties, consistent with [the Commission’s]
recent report finding that mandatory minimum penalties are often too severe and
sweep too broadly in the drug context, often capturing lower-level players.

Thursday, January 16, 2014

Judgment of Acquittal Reversed Even Though Theoretically “Just as Likely” Defendant’s Roommate Downloaded the Child Pornography

Smith had two roommates during the time that someone
intentionally downloaded videos of child pornography onto his computer.Both of the roommates regularly used Smith’s
computer.One roommate’s employment
records eliminated her as a suspect.The
other, Jolly, testified that he did not download files.Smith did not testify but presented three witnesses
who claimed he was visiting his parents during the time the child pornography
was downloaded.

The jury returned a guilty verdict after deliberating for a
few hours.Smith filed a motion for a
new trial, which the district court rejected, and a separate motion for
acquittal, which the district court granted.In its order, the district court reasoned that “it is just as likely
that Joshua Jolly downloaded the child pornography onto the computer as Smith
did.”

The panel reverses the judgment of acquittal since the
question is not whether it is equally likely that Smith did not download the files
but whether “this evidence, taken in the light most favorable to the
verdict, offers ‘nearly equal circumstantial support’ for competing
explanations.”The panel believes that
it does not since it was reasonable for the jury to credit Jolly’s testimony
over the testimony of Smith’s witnesses, particularly since the prosecution introduced
evidence that one of Smith’s witnesses had changed her account of the relevant
dates and another had not mentioned Smith’s visits home during her first questioning
by police.The panel also rejected Smith’s
argument that the prosecution had to show knowledge of or access to the child
pornography, which would go to constructive possession, since there was
sufficient evidence to find actual possession.Undisputed expert testimony indicated that someone searched for and
selected the files for download, and that 19 of the 26 files were previewed at
the time of download.

Criminal Forfeiture Statute Trumps Third Party Petition and the Terrorism Risk Insurance Act

If you have a claim to assets blocked as belonging
to a terrorist party, you better file your claim before the government restrains
them under 21 U.S.C. § 853 to preserve their availability for criminal
forfeiture proceedings.

The Rubins, who were victims of a terrorist attack
in 1997, filed a third party petition under 21 U.S.C. § 853(n) to assert their
interest in the Holy Land Foundation for Relief’s assets.In 2001, HLF was deemed an arm of Hamas and
its funds were blocked. In 2004, while HLF’s
assets were still blocked, the government filed an indictment including its
notice to seek criminal forfeiture. In denying the government’s motion to
dismiss the Rubins’ petition, the district court held that the Terrorism Risk
Insurance Act of 2002 (TRIA) allowed the Rubins to execute against HLF’s assets
notwithstanding the government’s forfeiture proceedings. The government
appealed, however, and the panel reversed, holding that the Rubins failed to
demonstrate an entitlement to recovery under either 21 U.S.C. § 853 or the TRIA.

The panel held that the Rubins cannot prevail under
21 U.S.C. § 853 because the criminal forfeiture statute bars a third party
claiming an interest in forfeitable property from intervening in the criminal
trial or appeal, and also prohibits a third party from commencing a separate
action against the United States on the basis of that party’s interest in the
property. In regards to the TRIA argument, the panel reasoned that, since TRIA
only applies to blocked assets of a terrorist party, it did not apply here
since the assets became unblocked once the government filed its forfeiture. Lastly, the panel held that the clause “notwithstanding
any other provision of law” of TRIA does not trump the criminal forfeiture
statute.

Monday, January 13, 2014

No Vulnerable-Victim Enhancement When Double Counts Factors Already Accounted for by Other Enhancements

Ramos pleaded guilty to one count of receipt of child
pornography, one count of distribution of child pornography, and two counts of
possession of child pornography.The
presentence report recommended a two-level enhancement for vulnerable victims
explaining that Ramos knew or should have known that the victims were
vulnerable because they were young and small.Ramos objected to the vulnerable-victim enhancement as double counting
the age and sadistic-conduct enhancements.The district court overruled the objection.

The panel “doubt[s] that the district court correctly
applied the vulnerable-victim enhancement here, where the only factor that made
these children particularly vulnerable as compared to other pre-pubescent
children—that some images depicted the children bound to chairs with rope—was
already accounted for by the sadistic-conduct enhancement.”The panel rejects the Government’s argument
that the sadistic-conduct enhancement was broader in that it covers other
behavior present in the videos.Under United States v. Jenkins, 712 F.3d 209
(5th Cir. 2013), the question is not whether other videos could justify the
sadistic-conduct enhancement but whether the factor that makes the person a
vulnerable victim is already incorporated in the offense guideline.Here, “the sadistic-conduct enhancement
already covered the vulnerability of bondage.”

Any error, however, was harmless.The district court granted a variance on the
first two counts and sentenced Ramos to the statutory maximum for the possession
counts: 120 months.The panel believed
the record was clear that the district court would have imposed the same
sentence even if the Guidelines range was properly calculated.

Thursday, January 09, 2014

A Few Kilos Short of 10-Year Mandatory Minimum Sentence, but Conspiracy Conviction Stands

A group accused of drug distribution appealed their
convictions and sentences for conspiracy to distribute and to possess with
intent to distribute five kilos or more of cocaine in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(A)(ii). The defendants argued that evidence provided at trial was
insufficient to support the jury’s verdict regarding drug quantity. Since only
1.535 kilograms were offered as physical evidence to the jury, the panel agreed
that evidence did not support a finding that the conspiracy involved five
kilograms or more. The Government’s failure to prove the five kilo quantity did
not invalidate the conspiracy convictions but did call for resentencing
(resentencing under 21 U.S.C. § 841 (b)(1)(B)(ii) was deemed appropriate in
this case). The panel also vacated Daniels’ sentence on unlawful use of a
communication facility and remanded to the district court for resentencing.

On 9/5/2013,the panel
decided pursuant to a petition for rehearing by several defendants that those
defendants’ sentences on the substantive counts would also be vacated and the
case remanded for resentencing since the “Guidelines range calculations were
driven by the conspiracy’s non-vacated 5 kilogram finding.”

Wednesday, January 08, 2014

In a unanimous opinion, the Court held that “where a defense
expert who has examined the defendant testifies that the defendant lacked the
requisite mental state to commit a crime, the prosecution may offer evidence
from a court-ordered psychological examination for the limited purpose of
rebutting the defendant’s evidence.”

The Kansas Supreme Court had reversed Cheever’s conviction, holding
that the admission of evidence form a court-ordered psychological examination
violated Cheever’s Fifth Amendment right against self-incrimination.In so doing, the Kansas Supreme Court distinguished
Buchanan v. Kentucky, 483 U.S. 402 (1987),
by finding that Cheever’s voluntary intoxication—his defense—was not a “mental
disease or defect.”The U.S. Supreme Court
reversed and clarified that its holding in Buchanan
is not limited to “mental disease or defect” defenses but rather “mental status”
defenses, which would include voluntary intoxication.

Health Care Fraud Conspiracies that Overlap in Time, Place, Personnel, and Statutory Charge Don't Violate Double Jeopardy Since Government Sought to Punish Different Activity

Four defendants were convicted on numerous counts related to
committing health care fraud, receiving or paying healthcare kickbacks, and/or
making false statements for use in determining rights Medicare benefits and
payments.The panel affirms the
convictions and sentences but remands to the district court to amend Njoku’s
written sentence of 63 months to conform with the oral sentence of 60 months.

The panel finds the Government presented sufficient evidence
that Njoku knew of the unlawful purpose of both the health care fraud
conspiracy and the kickback conspiracy and that she joined in those agreements
willfully.She also challenges the two
conspiracy counts as multiplicitous.(Since
she did not object to the indictment as multiplicitous, the convictions stand
but the sentences can be challenged under plain error review.)Njoku argues that her health care fraud conspiracy
conviction was based entirely on proof of the kickback conspiracy, so the
kickback conspiracy is a lesser included of the health care fraud
conspiracy.The panel disagrees, noting
that one conspiracy is under 18 U.S.C. § 1349 (proof of conspiracy to commit fraud
and that fraud is the object of the conspiracy) and the other under 18 U.S.C. §
371 (proof of conspiracy against United States and the commission of an overt
act).Further, the indictment described
the unlawful purpose of the health care conspiracy as the receipt of kickbacks in addition to the submission of
fraudulent claims to Medicare.

Defendant Ellis challenges her trial on the of conspiracy to
commit health care fraud as violating the Double Jeopardy Clause because she was
acquitted of a conspiracy to commit health care fraud after a trial by jury prior
to the instant indictment. The first indictment
focused on her activity as a recruiter and the other focused on her falsification
of nursing notes and medical certifications. Since she established a prima facie
nonfrivolous double jeopardy claim, the Government bears the burden to prove by
a preponderance of the evidence that she was charged in separate conspiracies.The panel undertakes the five-prong test to
determine whether there were two agreements and conspiracies.It concludes that “the time, statutory offenses,
and places involved suggest that there was one agreement.Nevertheless, . . . two agreements and two
conspiracies existed because of the separate functions that central
co-conspirators provided in each scheme and the distinctive activity that the
Government sought to punish in each case.”

Ellis also argues that in her acquittal of the first charged
conspiracy, the jury necessarily determined that she did not know her paid
referrals were illegal, which she argues would bar any subsequent prosecution
on whether she willfully received
kickbacks.The panel finds that the
first jury could have based the acquittal either on Ellis not knowing that the
paid referrals were illegal or on her not intending to further the unlawful
purpose as charged in the indictment.Since the jury did not have to necessarily
find that she did not know the referrals were illegal, she was not twice put in
jeopardy.

During trial, Ellis sought to introduce portions of
testimony by a person, Clifford Ubani, who testified in the first trial that he
never agreed with Ellis to do something unlawful but invoked his right against
self-incrimination in the second trial.The
district court excluded this evidence finding its admission would require the
admission of additional evidence in order to explain the statement in the
proper context and would be more misleading or confusing than probative.The panel also rejects Ellis’s argument that the
district court’s ruling violated her Sixth Amendment right to present a
complete defense.

With regard to sentencing, the panel affirms the loss amount
calculated for Ellis, finding that the Government presented reliable evidence of
actual loss and the district court properly considered Ellis’s contrary
evidence.The panel also affirms Ezinne
Ubani’s enhancements as a manager/supervisor and abuse of trust, noting that “Medicare
invests an important trust in RNs who complete OASIS questionnaires and certify
plans of care for initial episodes of care and recertifications . . . .”

Monday, January 06, 2014

New Study Finds Test Often Used in Sexually Violent Predator Evaluations Is Unreliable

A new study
finds that the Psychopathy Checklist-Revised, which is often used to determine
the civil commitment of offenders as sexually violent predators, is
unreliable.The study is “The
Role and Reliability of the Psychopathy Checklist-Revised in U.S. Sexually
Violent Predator Evaluations: A Case Law Survey” by DeMatteo, D., Edens, J. F.,
Galloway, M., Cox, J., Toney Smith, S. and Formon, D. in Law and Human
Behavior (2013).

Here is the abstract from American
Psychiatric Association PsychNET Direct:

The civil commitment of offenders as
sexually violent predators (SVPs) is a highly contentious area of U.S. mental
health law. The Psychopathy Checklist—Revised (PCL–R) is frequently used in
mental health evaluations in these cases to aid legal decision making. Although
generally perceived to be a useful assessment tool in applied settings, recent
research has raised questions about the reliability of PCL–R scores in SVP
cases. In this report, we review the use of the PCL–R in SVP trials identified
as part of a larger project investigating its role in U.S. case law. After
presenting data on how the PCL–R is used in SVP cases, we examine the
reliability of scores reported in these cases. We located 214 cases involving
the PCL–R, 88 of which included an actual score and 29 of which included
multiple scores. In the 29 cases with multiple scores, the intraclass
correlation coefficient for a single evaluator for the PCL–R scores was only
.58, and only 41.4% of the difference scores were within 1 standard error of
measurement unit. The average score reported by prosecution experts was
significantly higher than the average score reported by defense-retained
experts, and prosecution experts reported PCL–R scores of 30 or above in nearly
50% of the cases, compared with less than 10% of the cases for defense
witnesses (κ = .29). In conjunction with other recently published findings
demonstrating the unreliability of PCL–R scores in applied settings, our
results raise questions as to whether this instrument should be admitted into
SVP proceedings. (PsycINFO Database Record (c) 2013 APA, all rights reserved)

NPR
covered the rise of the PCL-R in a 2011 story,
describing how it began as a research tool and then was coopted by the criminal
justice system to the dismay of its creator who “feared that the test, created purely for
research purposes, might be used incorrectly in the real world and could hurt
people.”

Three defendants were convicted by a jury of various crimes
related to their involvement in a health care fraud conspiracy.The panel affirms their convictions.At one point during trial, the district judge
commented to the jury that he will make notes about things he finds humorous
with a red pen so that he can visit with the jury after the case in the jury
room about those things; all other notes he will take in black ink. None of the defendants objected
contemporaneously to these remarks.The
panel rejects the argument that the jury could look to see what color of pen
the judge was using to help them determine how to interpret the evidence.No plain error.

Ramos objected to the introduction of her personnel file on
the first day of trial on the grounds that her counsel had not seen the records
before and did not have sufficient time to review them.She challenges the admission of the documents
as a violation of the court’s order requiring parties to exchange exhibits
seven days prior to the start of trial.Ramos did not request discovery pursuant to Rule 16, and could not
therefore challenge the admission under Rule 16.The panel finds that the admission of the
personnel file did not prejudice Ramos’s substantial rights because the
Government would have sustained its burden of proof without it, noting that
Ramos had equal access to it prior to trial.

The panel finds that the district court properly allowed
rebuttal testimony that was relevant, was not hearsay (because not offered for
the truth of the matter but rather to impeach the defendant’s credibility), and
was not offered as character evidence.The
panel also defers to the district court’s decision to limit the deliberate
ignorance instruction to one of the defendants whose defense at trial focused
on her alleged lack of guilty knowledge.

The panel rejects Ramos’s argument that she could not have willfully violated the Anti-Kickback
Statute because she did not know that engaging in a commission-based pay
arrangement with a Medicare provider violated the law.The panel finds that the Government need only
“prove that the defendant willfully committed an act that violated the
Anti-Kickback Statute,” not that the defendant knew of the statute or acted
with a specific intent to violate it.

The panel affirms St. Junius’s sentence, finding that it is
plausible that she held a managerial role in the offense since she led others
to believe she owned the business and “signed Medicare documents, signed and
issued paychecks, and sent correspondence as the owner” of the business.St. Junius also held a position of trust
since she had a license to provide medical equipment for Medicare, and she
abused that trust by signing documents and engaging in other activities that
helped facilitate the health care fraud conspiracy.The panel finds that Ramos and Spicer also
abused positions of trust even though they did not have a fiduciary
relationship with Medicare; they both transferred patients’ “means of
identification” to facilitate the crime.

The panel vacates Spicer’s and Ramos’s restitution orders,
however, because they were improperly based on conduct outside of the offense
for which they were convicted.The
restitution amount was based on the total amount Medicare/Medicaid paid the
business based on Spicer’s and Ramos’s referrals ($794,434.08); “a figure that grossly
exceeded the amount Medicare/Medicaid paid with respect to the crimes for which”
they were convicted.